“Because the right to be free from an irrebuttable presumption of non-residency has been clearly established since Viandis was decided over 30 years ago, defendants are not entitled to qualified immunity.”
How later courts described this case
- “Because the right to be free from an irrebuttable presumption of non-residency has been clearly established since Viandis was decided over 30 years ago, defendants are not entitled to qualified immunity.”
Written by the judges who cited it.
The opinion
REINHARDT, Circuit Judge,
dissenting:
Because there are genuine issues of material fact that must be resolved, I would reverse the district court’s grant of summary judgment to defendants. Our task *256 on summary judgment is not to weigh the evidence, as I believe the majority has done. The question before us is not whether Appellants produced “sufficient evidence that MUS applied the credit-hour presumption irrebuttably.” [Mem. Dispo. at 3, emphasis added] Nor must plaintiffs have “shown that the MUS has applied an irrebuttable presumption of non-residency.” [Mem. Dispo. at 4, emphasis added].
Rather than resolving genuine issues of material fact, we must simply determine whether any such issues exist. Plaintiffs submitted evidence that defendants did apply an irrebuttable presumption of non-residency to full-time students — namely, the letter from Crofts to Gibson, which states: “The 12-month [waiting] period does not begin until acts indicative of an intent to establish residency are taken and does not run for any period of time for which you are enrolled for 7 or more semester credits.” [ER 5]. In my view, there is no question that the letter from Crofts to Gibson raises a genuine issue that should be resolved by a trier of fact. A trier of fact could decide, based on the letter, that defendants did apply an irre-buttable presumption of non-residency. Under the Supreme Court’s holding in Vlandis v. Kline, 412 U.S. 441, 452 , 93 S.Ct. 2230 , 37 L.Ed.2d 63 (1973), such a presumption violates plaintiffs’ constitutional rights. Because the right to be free from an irrebuttable presumption of non-residency has been clearly established law since Vlandis was decided over 30 years ago, defendants are not entitled to qualified immunity. For these reasons, when taking the facts in the light most favorable to plaintiffs, as we must on summary judgment, defendants are not entitled to qualified immunity. I therefore respectfully dissent.